Case of the Day – Monday, April 24, 2017

Mr. Elder drove his dump truck onto the Union Pacific tracks in Nephi, Utah — a town, not a soft drink — where he was promptly hit by what the Utah Supreme Court described as a “ninety-one car train.” It’s unlikely 78 cars or 23 cars or even just a set of GE diesel-electric locomotives would had a less deadly result.

Mr. Elder was killed, and his widow set off trying to find someone to pay for it. She sued the Railroad and the City, suggesting that someone should have trimmed the trees near the tracks so her husband could have seen the train. The UP, which was quite adept in its own right in blaming others for grade-crossing mishaps, had a great excuse: the railroad didn’t own the trees to begin with.

It seems that no one ever remembered to give the Union Pacific title to its right-of-way, due to — what else? — a federal government screw-up back in the 19th century. However, the ever-resourceful Mrs. Elder argued, the Railroad had acquired all of the land under and around the tracks by prescriptive easement. She was thus in the unusual position of arguing in the lawsuit that the defendant Railroad was entitled to own a big piece of land on which it had been squatting for a hundred years — and was therefore liable for not keeping up the land it had never claimed it owned — all at the same time.

Pretty creative lawyering! But the Utah Supreme Court held Mrs. Elder had no standing to claim the UP’s prescriptive easement on its behalf, probably because the Court suspected she didn’t have the Railroad’s best interests at heart. Imagine! As for the City, the Court agreed it had no duty under statute to trim the trees, but it observed the City did have a common law duty to Mr. Elder. The case was sent back to figure out whether that duty required it to trim the trees obscuring the crossing.

Elder v. Nephi City ex rel. Brough, 164 P.3d 1238 (S.Ct. Utah, 2007). Shelley Elder was killed on a Union Pacific Railroad railway track in Nephi City, Utah, when the dump truck he was driving was struck by a freight train. His widow sued, contending that her husband’s death was caused by the negligence of Union Pacific Railroad and the City of Nephi.

The tracks may have been a little obscured by trees, but not quite like this.

According to Mrs. Elder, her husband would not have lost his life had a line of trees located parallel to the railroad tracks not obscured his vision of the train. The trees were situated on land owned by the City of Nephi, but Union Pacific owned the tracks and operated the train. The Railroad had no recorded property interest in the ground where the trees were located. The trial court summarily dismissed Mrs. Elder’s wrongful death claim, ruling as a matter of law that neither Nephi nor the Railroad owed a duty to Mr. Elder to assure that the trees did not impair motorists’ ability to observe approaching trains. She appealed.

Held: The Railroad had no property interest in the trees and was under no duty to remove them. While the City of Nephi owed no statutory duty to Mr. Elder, it did owe a common-law duty to him, and the case had to be reversed on that point.

As for the Railroad’s right-of-way through Nephi, the UP route was acquired by prescriptive easement rather than by statute, and thus did not extend to land bordering tracks, including the land on which the offending trees stood. Under the Federal Townsite Act of 1867, the United States conveyed by patent to a probate judge the land within the city limits, including the railroad crossing area. Because this conveyance occurred before Congress passed the Railroad Right of Ways Acts granting railways a right-of-way through public lands, the statute could not have conveyed the right-of-way through Nephi.

Mrs. Elder claimed that the Railroad’s prescriptive easement extended not only to the railbed, however, but also to the land on which the trees stood. The Court ruled that while it wouldn’t rule that out, Mrs. Elder lacked standing to make a prescriptive easement claim on behalf of the Railroad. Standing to bring a quiet title action to perfect title is limited to parties who could acquire an interest in the property created by the court’s judgment or decree. What Mrs. Elder sought to do was to stick Union Pacific with the prescriptive easement as a way-station on the road to making the Railroad liable for her husband’s death.

As for the City of Nephi, the Court said, municipalities owe a duty of reasonable care to ordinary people, and this duty extends to travelers upon their highways. The scope of a governmental entity’s common-law duty to persons using roadways under its control extends beyond the boundaries of the thoroughfare. A governmental entity does not undertake a duty to remove vegetation from private land that may obstruct the vision of motorists utilizing its roadways; nor does a private party bear a common-law duty to keep roadways free of visual obstructions caused by vegetation growing on his land.

The Court ruled that the Utah statute requiring landowners to remove vegetation “which, by obstructing the view of any operator, constitutes a traffic hazard,” did not impose on city a duty on the City to monitor railroad crossings for visual obstructions. U.C.A. § 41-6-19. Rather, the City’s statutory obligation to remove the trees would have been triggered by receipt of notice from the department of transportation or a local authority that an investigation had deemed the trees to be a traffic hazard, and city did not undertake any such investigation itself.

Nevertheless, the Court said, a genuine issue of material fact remained as to the allocation of duties between the City — which owned land near railroad tracks that contained irrigation ditch and trees which sprouted from the ditch embankment — and the irrigation company, which maintained irrigation ditch along the land pursuant to an irrigation easement. The common-law duty of a governmental entity to safeguard those who travel its roads may extend to visual hazards located on its land outside the bounds of the roadway itself, and the mere fact that an easement existed did not automatically assign that common-law duty to the servient estate. The issue of whether the City or the irrigation company was responsible for tree trimming, and whether the City breached its duty to the late Mr. Elder, precluded summary judgment.